Citation Nr: 1527791
Decision Date: 06/29/15 Archive Date: 07/09/15
DOCKET NO. 13-28 103A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania
THE ISSUE
Eligibility for Service Disabled Veterans Insurance (SDVI/RH insurance) under 38 U.S.C.A. § 1922.
ATTORNEY FOR THE BOARD
H. Hoeft
INTRODUCTION
The Veteran served on active duty from September 1965 to January 1969. He died in December 2008. The appellant seeks benefits as his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center (IC) that denied eligibility for SDVI/RH insurance under 38 U.S.C.A. § 1922.
FINDINGS OF FACT
1. The Veteran did not file an application for SDVI/RH insurance during his lifetime.
2. The appellant effectively filed an application for gratuitous SDVI in January 2009.
3. The weight of the competent evidence does not reflect that the Veteran was mentally incompetent from a service-connected disability, or otherwise, at any time during his lifetime.
CONCLUSION OF LAW\
The criteria for eligibility for Service Disabled Veterans Insurance (SDVI/RH) under 38 U.S.C.A. § 1922 have not been met. 38 U.S.C.A. § 1922 (a), (b)(West 2014); 38 C.F.R. § 3.353 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify
Because the claim at issue is limited to statutory interpretation, statutory notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim.
Applicable Law and Regulations
Under 38 U.S.C.A. § 1922(a), an application for SDVI/RH Insurance is considered timely if filed within two years from the date service connection for a disability is awarded and the disability is at least 10 percent disabling. The appellant does not claim, and the record does not indicate, that the Veteran applied for SDVI/RH insurance during his lifetime. See, e.g., June 2013 Statement from Appellant.
Under 38 U.S.C.A. § 1922(b), a person otherwise qualified for SDVI/RH insurance who did not apply for such insurance will be deemed to have applied for and been granted such insurance if he is shown by the evidence to have been mentally incompetent from a service-connected disability: (a) during any part of the two-year period from the date of service connection, (b) remained continuously so mentally incompetent until the date of death, and (c) died before appointment of a guardian or within two years after the appointment of a guardian.
38 C.F.R. § 3.353(a) defines a mentally incompetent person as one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation. Moreover, rating agencies have the sole authority to make official determinations of competency and incompetency for purposes of insurance. A rating agency cannot make a determination of incompetency without a definite expression regarding the question by the responsible medical authorities, and where a reasonable doubt arises as to the Veteran's competency or incompetency, it is resolved in favor of competency. 38 C.F.R. § 3.353(b)(1),(c),(d) (2014).
Analysis
The appellant contends that the Veteran was (erroneously) informed by VA that he "needed to be deemed 100 % service-connected in order to apply for Life Insurance." See, e.g., August 2011, October 2012, and May 2013 Statements from Appellant. She asserts that prior to his death, the Veteran was "appealing his 90 percent" (combined) disability rating and that his intention was to receive a 100 percent rating "so he would be eligible for life insurance through the VA." See August 2011 Letter from Appellant. She believes that the Veteran would have been entitled to insurance benefits since his death was "100 percent service connected" (see March 2009 rating decision, granting service connection for the cause of the Veteran's death) and/or because he ultimately received a 100 percent combined disability rating.
At the time of the Veteran's death in December 2008, service connection was in effect for the following disabilities: coronary artery disease with congestive heart failure, associated with diabetes mellitus (rated as 60 percent disabling); adjustment disorder with depressed mood (rated as 50 percent disabling); diabetes mellitus, type II (rated as 20 percent disabling); and peripheral neuropathy of the bilateral upper and lower extremities (rated as 10 percent disabling, per extremity). See May 2007 and May 2005 rating decisions. The combined evaluation for compensation was 80 percent and 90 percent, respectively. Subsequent to the Veteran's death, a March 2009 rating decision increased the disability ratings for the service-connected upper and lower extremity peripheral neuropathy, which resulted in a combined rating of 100 percent, effective August 2008. That decision also granted service connection for the cause of the Veteran's death. Most recently, in October 2014, the RO granted service connection for a scar associated with coronary artery disease (rated as 0 percent disabling).
As an initial matter, the Board acknowledges the appellant's assertion that the Veteran was (erroneously) told by VA that he had to be 100 percent disabled to be eligible for SDVI/RH insurance coverage. Despite the appellant's/Veteran's sincere belief that this was so, there is, in fact, no statutory or regulatory requirement that a Veteran must first attain a disability rating of 100 percent before he/she can apply or otherwise be eligible for SDVI/RH insurance benefits. See 38 U.S.C.A. § 1922(a), (b). (Emphasis added). Moreover, there are no communications, documentation, or other evidence from VA in the claims file to reflect that VA actually notified the Veteran of any such requirements during his lifetime. See, e.g., May 2005 and May 2007 VA VCAA Notification Letters.
Thus, while the appellant genuinely believes that the Veteran was told (or was otherwise misinformed) by VA that he had to be in receipt of a 100 percent rating for government insurance eligibility, the requirements set forth under 38 U.S.C.A. § 1922(a) and (b) are clear - i.e., in order to substantiate a claim for SDVI/RH coverage, in short, the Veteran must have applied for SDVI/RH within two years from receiving notification of his VA rating for a service-connected disability, OR, the Veteran must have been shown to have been mentally incompetent from a service-connected disability. See 38 U.S.C.A. § 1922(a), (b). (Emphasis added).
In this case, pursuant to the initial May 2005 rating decision, the Veteran was assessed as 80 percent disabled (his combined rating) as a result of his service-connected diabetes, coronary artery disease, and peripheral neuropathy. The Veteran was notified of that determination on May 31, 2005. Notably, the contemporaneous notification letter included information concerning the Veteran's possible entitlement to insurance benefits. The letter also informed the Veteran that he had 2 years from the date of the notification letter to apply for government life insurance. The notification letter did not mention that a Veteran must be rated as 100 percent disabled to be eligible for insurance.
Thereafter, in a May 2007 rating decision, service connection for adjustment disorder with depressed mood was awarded; the combined disability rating was increased to 90 percent. The Veteran was notified of this rating decision on May 15, 2007. The contemporaneous notification letter again included information concerning the Veteran's possible entitlement to insurance benefits. The letter also informed the Veteran that he had 2 years from the date of the notification letter to apply for government life insurance. The notification letter did not mention that a Veteran must be rated as 100 percent disabled to be eligible for insurance.
The May 2005 and May 2007 rating decisions each triggered a two-year period in which the Veteran was eligible to apply for SDVI/RH insurance. 38 U.S.C.A. § 1922(a). Here, there is no evidence in the record that the Veteran applied for insurance benefits in the two-year period following the issuance of the May 2005 or May 2007 rating decisions/notification letters. The appellant does not contend otherwise. Therefore, as the Veteran did not file a claim for SDVI/RH insurance during his lifetime, there is no basis to establish entitlement to SDVI/RH insurance under 38 U.S.C.A. § 1922(a).
The Board will next consider whether eligibility for SDVI/RH insurance can be established under the provisions of 38 U.S.C.A. § 1922(b).
Briefly, the Board notes that the appellant expressly mentioned the possibility of life insurance benefits in her January 2009 Application for Dependency, Indemnity and Compensation, Death Pension, and Accrued Benefits. As such, a valid claim for RH gratuitous insurance is considered to have been received within two years after the date of death of the Veteran. 38 U.S.C.A. § 1922(b)(3).
Concerning the issue of competency, the Board's review of the evidence does not reflect that the Veteran was ever found to be mentally incompetent by any medical clinician or the VA, or was a guardian ever appointed to manage his affairs. The Board is mindful that the appellant appears to argue that the Veteran's mental incompetency is related to a diagnosis of posttraumatic stress disorder (PTSD). Such disorder is not service connected. The Board has also considered the appellant's reports concerning the Veteran's impaired state of mind, memory, and thinking. See VA Form 9 and Attached Statement. The appellant is competent to report on observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Again, the RO granted connection for adjustment disorder with depressed mood (secondary to service-connected medical problems) in a May 2007 rating decision. The Veteran underwent a VA psychological examination in February 2007 at which time he was found to be competent. VA medical records dated prior to February 2007 fail to show evidence of incompetency as a result of any service-connected disability, and the medical records dated subsequent to the February 2007 psychological examination, and leading up to his December 2008 death indicate that the Veteran was consistently described as a being a good historian, alert, and oriented to person, place, and time with fluent speech and the ability to follow commands (i.e., no barriers/issues to learning). See, e.g. June, July, October, and December 2008 VA Treatment Record.
In sum, the persuasive and probative evidence does not weigh in favor of a showing that the Veteran was mentally incompetent from a service connected disability at any relevant point in time. (Note: this includes consideration of the service-connected chest scar for which service connection was granted after the Veteran's death in October 2014).
Accordingly, while the appellant has filed a timely application for gratuitous SDVI/RH, the weight of the competent evidence does not support that the Veteran lacked mental capacity or competence due to a service-connected disability at the time of his release from active service, during the two-year period from the date of notice that service connection was established for a disability, or after active service release from active service for a disability not rated as service connected until after death. 38 U.S.C.A. § 1922(b)(1)(A)(i-iii). The appellant is thus not found to be eligible for gratuitous SDVI/RH insurance under the provisions of 38 U.S.C.A. § 1922(b).
The Board is sympathetic to the appellant in this matter; however, for the reasons and bases outlined immediately above, she is ineligible for SDVI/RH and/or gratuitous SDVI/RH insurance under 38 U.S.C.A. § 1922(a) and (b). Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
Eligibility for Service Disabled Veterans Insurance (RH insurance) under 38 U.S.C.A. § 1922(a) and (b), is denied.
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs